Boumediene v. Bush and Extraterritorial Habeas Corpus in Wartime

Authors

Riddhi Dasgupta

Abstract

How did the United States Supreme Court in Boumediene v. Bush conclude that the detention facility in Guantdnamo Bay, Cuba is indeed American territory for the purpose of habeas corpus? Why did the Court extend habeas to non-citizens as well? Which legal provisions and precedents guided the Supreme Court's analysis? The United States Constitution's Suspension Clause, precluding the suspension of habeas corpus except in well defined and discrete national security urgencies, is the controlling trump card raised by the detainees. This Commentary sets the stage for a multivariable conversation about the interplay among separation of powers, rejection of executive supremacy, historic station of habeas corpus, and other factors that guided the Court.

The federal habeas statute, 28 U.S.C. § 2241, extends to Guantdnamo because of practical considerations, not necessarily formal ones; and the consequences of excluding habeas corpus from Guant~namo would have been devastating for judicial independence. This Commentary also references English and American legal history transcending preand post-1789 to explore the competing merits on habeas's reach to Guantfnamo. Furthermore, in the end, the cause of judicial restraint would be harmed by the mechanism of governmentally approved trials (with lives and freedom at stake) that treat citizens and non-citizens differently concerning the right of habeas corpus.

Finally, this Commentary also advances the overarching theme that Boumediene is essentially a civil liberties case, and should for prudential reasons be perceived as such. Boumediene retains three central tenets: the Suspension Clause prevents arbitrary suspensions of habeas, the right to have an impartial court evaluate the legality of the detention is preserved by the Clause, and habeas corpus applies both to American citizens and to non-citizens. This last theme-equal protection of the laws guaranteed to litigants in federal claims through the Fifth Amendment's Due Process Clause-is interspersed through the text of the Commentary and is the silent jugular of the Boumediene decision.

Recommended Citation

Riddhi Dasgupta, Boumediene v. Bush and Extraterritorial Habeas Corpus in Wartime, 36 Hastings Const. L.Q. 425 (2009).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol36/iss3/2